CO Adult Protective Services (APS) actions are "lawless" according to one civil rights attorney

What to do when Adult Protective Services (APS) shows up at your door,  day program or other setting.

By Maureen Welch, 

Volunteer Activist and Mother to child receiving Colorado Medicaid waiver services

What triggers an APS visit? 

• There is a pattern of APS targeting Individuals with Intellectual and Developmentally Disabilities (IWIDD)  who are their own guardians. Some families are choosing to apply for guardianship now, as a precaution, if they had not already started that process. 

• At least one Community Centered Board(CCB) is requiring parents who are applying for emergency 24/7 care via Developmental Disability HCBS waiver to “check a box” stating they are neglecting their child. This is not a good idea, as it may result in a call to APS for investigation.

• Critical incident reports are triggering visits from APS. It appears the CCB calls into APS for a few small things like arriving to day program with some drool on their shirt.  Several CCBs report that they have been pressured multiple times, by a Director at the state’s Medicaid agency, Health Care Policy and Financing, to call a report into APS.

• Several law enforcement officers have shown up claiming that APS has falsely reported that the IWIDD has “visible cuts and bruises”, only to justify a visit. More than one county has realized the reports were fabricated, and being used for harassment. Law enforcement told APS they would not further respond after their initial check, especially after finding that the IWIDD were indeed happy, safe and healthy.


2. What to do when APS shows up? 

• Through the door, ask if they have a warrant. You do not have to let them into your home without a warrant. Often they arrive with someone from local law enforcement (LLE).

• APS are not law enforcement officers, they are investigators for a State program. APS operates at the county level with state funding from Colorado Department of Human Services. 

• Their training consists of short few days of “academy training” and on the job with other APS employees. 

• Exercise your right to have an attorney present! Then immediately get one! 

• Read more about your rights at the ACLU website https://aclu-co.org/know-your-rights/ 

• The fourth amendment of the US Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


3. Be very careful with any information shared

• Respect confidentiality of personal information.

• You are not obligated to share personal information like dates of birth, social security number or names of friends, family or acquaintances.

• Under no circumstances should APS be allowed to isolate the IWIDD for private interviewing. It has been reported that APS traps the person, unlawfully detains them without an attorney or anyone to assist, twists things around, asks confusing questions and keeps them isolated in a room until they sign documents, which they do not understand. APS refuses to release these documents, signed or blank, after forcing the IWIDD to sign it.  

• APS is very creative in how they question/pressure people. The intent of APS is to remove the person and get emergency guardianship. 

• Some cases report that people wanted to be “helpful” with information about clients’ family members and contacts, only to find out APS harasses them and has even charged them also with abuse and neglect as well. 

• Law Enforcement officers in the past have instructed APS to leave the property, after seeing the client was safe and healthy, and the report of injuries were a fabrication. The officer sent APS away since they did not have a warrant and immediate danger was ruled out.

• Colorado is a “one party consent” recording state, meaning it is legal if just one person in the conversation wants to record it. Many feel a recording of an interaction is the best record possible for documentation in the future. Phones or small digital recorders are convenient tools.


4. What happens once an “APS investigation” is opened?

• It has been shared with me that after APS gets guardianship, the CCB calls the Program Approved Service Agency (PASA or Direct Service Provider Agency)  and  pressures them to move the residential placement. The IWIDD is moved, often against their will to another residential setting.

• Often the new residential setting is far away from day program or employment, so that is changed also. Their entire world is turned upside down. 

• There is little to no communication from APS to the alleged perpetrator(s). Per APS draft rules, “It is important to note that the perpetrator’s intent is not a factor in making a finding”.

• Mandatory reporting rules state that mere “suspicion” is sufficient to make a report to APS.

• After the client  signs the APS document, APS gains “emergency guardianship”. Within a few days, there is a court proceeding and APS gains guardianship. Then the judge has deferred to APS, has often not allowed the attorney for the IWIDD or family to speak. 

• At the court proceeding, APS has implied the existence of overwhelming evidence of abuse or neglect when the investigation had hardly been opened. Guardianship is frequently awarded to APS. This has happened even when family members desired to apply to serve as guardian, although the judge did not allow anyone except APS to speak. 

• It is important to note that the State’s own Public Guardianship Advisory Group in their report deemed it a conflict of interest for APS to have guardianship. 

• When a IWIDD has retained an attorney, APS claims the client is incompetent to retain legal counsel. However, APS simultaneously claims the same individual was competent enough to sign a paper which APS forced upon them! 

• The pattern from many counties has been reported that after signing the paper, APS gains emergency guardianships. Within a few days, there is a court proceeding and APS gains guardianship. Then the judge defers to APS, has often not allowed the individual with intellectual or developmental disabilities (IWIDD) or family speak, and guardianship is awarded to APS, sometimes overriding family members willingness to be guardian. APS during these court proceedings twists things around so it appears there is overwhelming evidence from investigations when people have not even been interviewed yet.

• It is important to note that the State’s own Public Guardianship Advisory Group has deemed it a conflict of interest for APS to have guardianship. When a IWIDD has retained an attorney, APS then claims the client is incompetent to chose their counsel, although APS claimed the individual was competent enough to sign a paper which APS forced upon them.


5. What does it take for Abuse/Neglect to be “substantiated”?

• APS is working currently without rules however the proposed rules state a “greater than 50% chance of the report happening is enough to substantiate”. 

• That manner of determining a person’s future with an abuse neglect charge is arbitrary and appears more like a weather report more than a legal determination by the State!

• Many under “investigation” report going months without hearing anything from APS.

• The proposed rules state that once a case is substantiated, a level of severity will be determined and that person will be placed on the Colorado Adult Protective Services registry (CAPS) indefinitely. That registry is for potential employers to use for background checks.

 


6. What can you do to protect yourself?

• Do not let APS into your home or program. Know your rights.

• State your name and nothing more. Don't talk to them any further.

• Get a lawyer. Have them do all the talking. 

• It is wise to discuss procedures with families, neighbors and service providers to be prepared knowing procedure for a visit from APS and or Law Enforcement.


7. Participate and express your concerns

• Contact your local and state elected officials to raise awareness.

• Attend the State Board at CDHS on Feb 2,2018 and sign up to make public comment about APS lawlessness. More info at http://bit.ly/2mT1CNy 

• Call-in or attend the APS Stakeholder rule making review meeting. The meeting will take place on Thursday, January 25, 5:30-7:00pm at CDHS, 1575 Sherman Street, Denver in the 8th Floor C-Stat Conference Room. CDHS is currently in the midst of "promulgating" (writing and approving rules) for APS using recent legislation and current statute as their guides. 

The purpose of this meeting is to seek feedback from community stakeholders on the proposed changes to APS Rules outlined in APS Rule Packet #1 which will go to the State Board of Human Services for final review on February 2nd and APS Rule Packet #2 which will go to the State Board of Human Services for first reading on February 2nd. Please feel free to forward this information to your contacts. 

◦ There is metered on-street parking and several pay-for-parking lots in the area. For those attending in person, they will need a photo ID to sign in at the security desk to receive a badge to enter the building. 

For those that would like to attend via phone and/or webinar, the information to call in is 302-202-1110, passcode 171769 and to register for the webinar the link is https://attendee.gotowebinar.com/register/1621008181777061378.

◦ Rule packets (17-16-26-01 and 17-16-26-02). Stakeholders that would like a hard copy are asked to print and bring to the meeting.(I will request some are printed for the meeting by CDHS  for those unable to print own copies.

◦ Link  to review document #1 (Rule making packet #1 "DOC 1") from Dec 1, 2017 CHDS Board meeting http://bit.ly/2CXJWXK . Link to Rule packet #2 and DRAFT OM for Severity Levels 11.28 , the two APS documents from Dec 5, 2017 APS task group meeting http://bit.ly/2myaZTB    

◦ If you wish to see the referenced legislation, they are available by searching by bill number at http://leg.colorado.gov/bills . Access to current Colorado Revised Statute is at http://bit.ly/2rkp7Vm.


8. How can this lawlessness be happening? 

• Embarrassment or shame are keeping many in the shadows. Now is the time to be outraged. 

• The rules for the multiple pieces of legislation that created this lawlessness are not yet promulgated. It appears they are “winging it” as they go. 

• Rules, regs and statutes seems to “not apply”. 

• People cooperate with APS since they know they are innocent of abuse and neglect.

• One civil rights attorney even referred to this APS guardianship process as “lawless”. 

• There is a new Office of Public Guardianship in formation in the Judicial Branch, with a projected eventual annual budget over $7M with a state funded staff of 81 full time employees! It could be  that this artificial “need” of IWIDD will be used to justify emergency state “supplemental” funding. 

• Inherent in the conflict of interest with APS is that guardians determine placement for services which drives dollars to their preferred providers, often via CCB recommendations.